December 15, 2011

Judge Rules For DOJ In Suit Over Politicized Hiring

Updated 7:19 p.m.

A federal trial judge in Washington today dismissed a suit that claimed the U.S. Justice Department unlawfully used political and ideological affiliations to screen job applicants for positions in the department’s highly competitive Honors Program.

The suit in Washington federal district court was filed in 2008 on the heels of an internal report that found certain DOJ lawyers during the George W. Bush administration committed misconduct in reviewing employee applications for the program in which the department hires recent law school graduates and law clerks.

The plaintiffs said lawyers in the administration of Attorney General Alberto Gonzales printed from the Internet personal information about their political and ideological associations and then used that information to determine whether or not to grant a job interview. The relevant files have since been destroyed. (Click here for excerpts from Gonazales' deposition.)

"This case reflects extremely troubling behavior from high-ranking Department of Justice officials," U.S. District Judge John Bates said in his ruling. "This court, and others, have often condemned that conduct. Even so, plaintiffs have not met their burden to prevail on the Privacy Act claims presented in this case."

Bates said he "agrees with plaintiffs that misconduct from senior government officials should not be condoned. Nonetheless, as much as the court might disapprove of certain conduct, the evidence before it must be objectively analyzed under the law.”

Daniel Metcalfe, the lawyer for the three remaining plaintiffs—each was an unsuccessful job applicant—argued the destruction of the documents violated the Federal Records Act. Metcalfe, an American University Washington College of Law professor, for many years supervised the Justice Department's defense of hundreds of suits over access to public records.

“This decision rests on the Justice Department’s position that it can destroy records if it chooses to, even records that are the only direct evidence of admitted wrongdoing," Metcalfe said in an e-mail this evening. "The plaintiffs look forward to presenting this issue, within its full fact pattern, for review by the court of appeals.”

Bates said the Justice Department’s destruction of relevant files did not constitute “spoliation,” or the intentional hiding of information. DOJ, the judge said, acted in accordance with the Federal Records Act in making a "records disposition decision with respect to Honors Program materials; the materials sought by plaintiffs were simply outside the bounds of the applicable records dispositions schedule.”

Without a spoliation inference, the judge said, the plaintiffs have “failed to offer evidence on which a finder of fact could reasonably hold the Department liable under the Privacy Act.”

DOJ’s use of political or ideological affiliation in civil service hiring would not, alone, violate the Privacy Act, the judge said.

“This conduct is certainly inappropriate, and could conceivably be the basis of some other claim,” the judge said. “But as far as the Privacy Act is concerned, in order to prevail plaintiffs must show that an inappropriately maintained record caused their injury.”

Bates said that without the DOJ screening committee files, "it is difficult to see what further information could shed light on the matter, and plaintiffs have not indicated that they intend to offer any additional probative evidence.”

“We will simply never know whether the Screening Committee relied on the plaintiffs' applications or on information added to their files as a result of Internet searches,” Bates wrote.